Hall v. Hall

• Decision Date: 27 April 1970
• Citation: 210 Va. 668,173 S.E.2d 865
• Parties: Clayton J. HALL v. Lois Carey HALL.
• Court: Virginia Supreme Court

Page 865

173 S.E.2d 865

210 Va. 668

Clayton J. HALL v. Lois Carey HALL.

Supreme Court of Appeals of Virginia.

April 27, 1970.

Betty A. Thompson, Arlington, for appellant.

John E. Kilcarr, Arlington, for appellee.

Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, COCHRAN and HARMAN, JJ.

I'ANSON, Justice.

This is an appeal by the plaintiff, Clayton J. Hall, from that part of a decree awarding the permanent custody of his three minor children to their mother, Lois Carey Hall (now Lois Carey Yenny), defendant.

On December 16, 1965, plaintiff filed suit in the court below against defendant, seeking a divorce on the ground of desertion and praying for permanent custody of their three minor children namely: Tara Susan Hall (10 years of age), Rose Mary Hall (9 years of age), and Loleete Ann Hall (8 years of age). Defendant, a resident of Virginia City, Montana, was proceeded against by an order of publication.

On December 13, 1965, the defendant filed suit for a divorce in the Eighth Judicial District for Clark County, Nevada, and on January 13, 1966, the Nevada court granted her a divorce from the plaintiff but made no adjudication as to the custody of the three minor children.

Plaintiff's suit in the court below was referred to a commissioner in chancery, who reported that the Nevada decree was void for lack of jurisdiction, and the chancellor, on April 15, 1966, granted plaintiff a divorce A mensa et thoro and awarded him permanent custody of the children. The decree was later merged into a divorce A vinculo matrimonii with the same stipulation as to custody.

On September 1, 1967, defendant filed a petition in the court below, under the provisions of § 8--78, Code of 1950, 1957 Repl. Vol., for a rehearing of the cause in which the divorce decrees were awarded plaintiff. On April 22, 1968, defendant filed another petition in which she prayed that she be awarded the permanent custody of their children.

Both petitions for a rehearing were granted, and after an Ore tenus hearing the chancellor gave full faith and credit to the Nevada decree, vacated and set aside his two former decrees, and awarded the permanent custody of the three minor children to the mother with certain visitation rights to the father.

The evidence before us on the custody question is in narrative form. It is as follows:

On June 14, 1965, defendant left her home in Fairfax County, Virginia, accompanied by her three minor children, for a vacation in Virginia City, Montana. Shortly thereafter she wrote the plaintiff that she was not returning to Virginia because she was tired of his belittling, bickering and physical abuse. Approximately a month later plaintiff received a letter from Alex Yenny, stating his intention to marry the defendant.

In August 1965, plaintiff went to Virginia City to effect a reconciliation with his wife. His efforts were unsuccessful and he returned to his home in Virginia. Approximately a month later he returned to Virginia City and brought the children back to his home.

Two days after the Nevada decree was entered, Yenny and the defendant were married in Las Vegas, Nevada. A son was born of this marriage. The Yennys live in Virginia City, a town with a population of 130 to 150 people. They reside in a rented house which is located one-half block from a school and fourteen miles from a hospital. They are presently planning to obtain a loan to purchase a new home. Yenny is employed by Virginia City Trading Company at a salary of $500 per month.

The defendant is 34 years of age. She testified that she terminated her marriage to plaintiff because she was 'just unhappy' living with him. She is now very happy with her present husband. While she was married to plaintiff she frequently suffered from migraine headaches, and was hospitalized for several months in 1957 in a mental institution. She is now in good health, both physically and mentally. She loves her children and wants them to live with her. She had not seen the children from early September 1965 until May 4, 1968. She made no attempt to see them because she did not believe plaintiff would permit it. Her last letter to the children was written in August 1967.

Plaintiff is a captain in the United States Air Force. He is 37 years of age and has been in the service for more than twenty years. He testified that he would soon be eligible for promotion to the rank of major, and that he had received orders for duty in the State of Hawaii. He stated that throughout his marriage to the defendant she consulted numerous psychiatrists and complained of being in poor health, but her physicians could not find anything physically wrong. It was necessary for him and their eldest daughter, Tara, to perform many of the household duties. Defendant did not keep the children clean. She had little control over them and would 'screech' at them to get them to obey.

In January 1968 plaintiff married Barbara Keene, the mother of three children born of a former marriage. The children of her first marriage get along well with the Hall children. She is devoted to the Hall children and has taught them to cook and sew and to groom themselves properly. The children call their stepmother 'mom' and have indicated in various ways that they are devoted to her.

A neighbor testified that the present Mrs. Hall is a devoted mother to all the children and is a good housekeeper. The six children are well adjusted; the family is a happy one; and they get along 'famously' together. The defendant was a very nervous person. She did not keep her children clean, and she stated on many occasions that she did not like to keep house. Captain Hall is a 'fine father.' Another neighbor testified that the defendant 'was often upset, nervous, dizzy and unhappy.'

A psychiatrist interviewed the Hall children and their stepmother. He testified that it was his opinion that the children are now entirely normal emotionally and that it 'would be a painful disruption of the family life' if they were required to go to Virginia City to live with their mother and stepfather. The children expressed love for their mother but said they did not like Mr. Yenny. They said they wanted to continue to live with their father. The stepmother is patient and understanding and 'capable of handling the family.'

The children have excellent school records and they are active in their church.

The chancellor interviewed the children and each expressed a desire to live with her father.

In awarding custody of the children to the mother, the chancellor found that 'there is no evidence of unfitness of the mother and that both parties are fit and proper to have the care and custody of the said minor children; and that the court is not...